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ELCDismissedEnvironment & Land Case E14 of 2022· [2023] KEELC 18259 (KLR)

Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others

Environment and Land Court
19 June 2023
LOL. A. Omollo
3,314 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Nakuru court ruled that defences like time limits and 'already decided' claims need evidence at trial, not a shortcut dismissal.

What this practically means

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Executive summary

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The 6th and 7th defendants in Environment & Land Case E14 of 2022 at Nakuru raised a preliminary objection dated July 4, 2022 seeking dismissal of the plaintiffs' suit on five grounds: that the claim was filed out of time contrary to the Limitation of Actions Act; that it was res judicata Nakuru High Court civil appeal No 64 of 2003 and Nakuru Court of Appeal civil application No 124 of 2006; that no cause of action was made against them; and that the 6th defendant was an innocent purchaser for value without notice. The plaintiffs, who seek declaratory orders that registration of the 1st, 2nd and 3rd defendants as owners of 33 acres of Rongai/Lengenet Block 2/12 was fraudulent, eviction of the 6th defendant and a perpetual injunction, opposed the objection. The 1st plaintiff in effect agreed with the 6th and 7th defendants, seeking only the correct title, while the 2nd plaintiff, who claimed to have bought 5 acres in 1986, argued he was not party to the earlier proceedings. Applying the Mukhisa Biscuit definition of a preliminary objection, and following Sichuan Huashi, Oruta v Nyamato, Divecon, Khaemba and Kimani, Omollo J held that limitation and res judicata are not pure points of law: limitation must be determined at trial on evidence, and res judicata requires scrutiny of pleadings in the former suits, none of which were availed. The preliminary objection was dismissed with costs. The suit proceeds to full trial.

Key legal issues

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01

Whether limitation of time can be raised by preliminary objection

Holding

No; limitation is a matter for trial on evidence

Reasoning

Relying on Sichuan Huashi Enterprises Corp Limited v Micheal Misiko Muhindi and Oruta & another v Nyamato, the court held that limitation defences require evidence at trial and cannot be dealt with summarily as a preliminary point, as the Limitation of Actions Act does not encourage striking out suits on such a preliminary issue.

p. 6
02

Whether res judicata can be raised by preliminary objection

Holding

No; res judicata requires probing of evidence and scrutiny of pleadings in the former suits

Reasoning

Following Henry Wanyama Khaemba v Standard Chartered Bank Ltd and George Kamau Kimani & 4 others v County Government of Trans-Nzoia, the court held that res judicata is not a true preliminary objection because it requires probing of evidence; the proper course is a notice of motion with pleadings annexed. No pleadings from the alleged former suits were availed.

p. 7
03

Whether the preliminary objection dated July 4, 2022 has merit

Holding

It lacks merit and is dismissed with costs

Reasoning

All grounds of the objection - limitation, res judicata, absence of cause of action and innocent purchaser status - depend on facts requiring evidence or scrutiny of pleadings in the former suits, none of which were availed. The objection therefore failed the Mukhisa Biscuit test of a pure point of law.

Legal principles established

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  • A preliminary objection must be a pure point of law and cannot rest on disputed facts requiring evidence
  • The defence of limitation of time cannot be determined summarily at a preliminary stage but only at trial on evidence
  • Res judicata cannot be raised by way of preliminary objection; it requires scrutiny of pleadings in the former suit

Court orders

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  1. 1.The 6th and 7th defendants' preliminary objection dated July 4, 2022 is dismissed with costs

Authorities

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Legislation

  • Limitation of Actions Actgeneral

Cases cited (8)

  • Mukhisa Biscuit Manufacturing Co Ltd v West End Distributors Limited
    (1969) EA 696

    Definition of a preliminary objection as a pure point of law

  • Sichuan Huashi Enterprises Corp Limited v Micheal Misiko Muhindi
    [2019] eKLR

    Limitation is a matter for trial, not a preliminary objection

  • Oruta & another v Nyamato
    [1998] KLR 590

    Limitation could only be queried at trial, not by preliminary objection

  • Divecon Ltd v Shirinkhanu S. Samani
    Civil Appeal No 142 of 1997

    Approval of Oruta on limitation being decided at trial

  • Henry Wanyama Khaemba v Standard Chartered Bank Ltd & another
    (2014) eKLR

    Res judicata issues require probing of evidence and cannot be preliminary objections

  • George Kamau Kimani & 4 others v County Government of Trans-Nzoia & another
    [2014] eKLR

    Res judicata should be raised by notice of motion with pleadings annexed

  • Independent Electoral and Boundaries Commission v Maina Kiai and 5 others
    Nairobi CA No 105 of 2017

    Elements of res judicata

  • Uhuru Highway Development Ltd v Central Bank of Kenya
    [1999] eKLR

    Elements of res judicata

Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (implied; not expressly cited in the ruling)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others", Case Analysis (2023). Environment & Land Case E14 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18259/eng@2023-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.